Barr. Peter Offiah V. Chief Nnamdi Offiah & Ors (2016)

LawGlobal-Hub Lead Judgment Report

RAPHAEL CHIKWE AGBO, J.C.A.

 The 1st to 3rd Respondents are plaintiffs in Suit No. HOW/133/2011 pending at the High Court of Imo State, Owerri Division. The Appellant and 4th Respondent are defendants in the suit.

The writ of summons in this suit issued on 17-5-2011. In paragraph 32 of the statement of claim filed the same date the plaintiffs claimed of the defendants as follows: –
?1. Declaration that the claimants are the authentic and recognized managers of the Estate of Late Chief Greg I. Offiah comprising of a two storey building situate at No. 25 Douglas Road Owerri Imo State, a one storey situate at No. 17 Old Aba Road Rumubiakani Port Harcourt Rivers State.
2. An order of Court on Finbank Nigeria Plc to transfer all monies so far collected on behalf of the family by Don. I. Offiah and Barr. Peter Offiah which they paid into a Finbank Nigeria Plc joint account No. 123430000285201 in their names into the now family account No. 1261060032247 with Diamond Bank Nigeria Plc in the name of Greg. I. Offiah?s children.
3. Perpetual injunction restraining Barr. Peter Offiah from collecting or

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continuing to collect rent from the tenants occupying any of the families? properties without authentication and consent of the family.?

On the 11th day of April 2011 before the issuance of the writ of summons, the plaintiffs had obtained an order from the High Court of Imo State in the following terms –
ORDER OF COURT
Upon reading through the exparte motion, the supporting affidavit, and the written argument in support of same and the reliefs sought therein and after hearing A. C. Meze, esq of Counsel for the Applicants.
THE COURT HEREBY ORDER AS FOLLOWS:
That the writ of summons and other Court processes are to issue out of Imo State for service on the 1st defendant at No 12 Akerele Street Surulere Lagos. Lagos State and the 2nd defendant at No. 93 Broad Street Lagos.
IT IS FURTHER ORDERED THAT THE WRIT OF SUMMONS are to be marked as one for service outside jurisdiction of this Court.
IT IS FURTHER ORDERED THAT the writ of summons and all other processes in this suit, be served on the 1st defendant by substituted means. That is to say by delivery of same to his office at No. 12 Akerele Street, Surulere Lagos,

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Lagos State by EMS speed post or DHL or any other recognized courier service. And on the 2nd defendant through their branch Manager or any other officer at their Wetheral road branch, Owerri, Imo State.
That such service, shall be deemed good, and proper service on the defendants/Respondents.
Return date is 11/5/2011.

The writ of summons that issued had endorsed on it ?For service out of jurisdiction.? The plaintiffs on 23-5-2011 also filed a motion on notice at the trial Court seeking an ?interlocutory injunction restraining the first defendant from collecting rent and/or continuing to act as manager of the properties of Late Chief Greg I. Offiah pending the determination of the substantive suit.?

On being served with these processes the Appellant, in a motion dated 6th May, 2011 but filed on 8th June, 2011 prayed the trial Court as follows:
?1. AN ORDER of Court setting aside the service of the Claimants/Applicants motion for interlocutory injunction dated 23rd May, 2011 filed in Court the same day, improperly served on the 1st Defendant on 2/6/2011 and fixed for hearing on 9th June 2011, on

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the ground that: –
The time between service of the said Motion on Notice on the 1st Defendant who is outside the jurisdiction of the Court and the hearing of the motion is less than 30days.
2. AN ORDER of Court setting aside or striking out the Claimants/Applicants motion for interlocutory injunction dated 23rd May 2011, filed in Court the same day, improperly served on the 1st Defendant on 2nd June 2011 and fixed for hearing on 9th June 2011, on the ground that the time between the service of the said motion on the 1st Defendant who is outside the jurisdiction of the Court and the hearing of the motion is less than 30 days.
3. AN ORDER of Court setting aside or striking out the Claimants/Applicants motion for interlocutory injunction dated 23rd May 2011 filed in Court the same day, fixed for hearing on 9th June, 2011 on the ground that two of the building, the subject matter of this suit, are situate in Rivers State and the honourable Court lacks the jurisdiction to entertain this Court.?

On the same 8th June, 2011 the Appellant filed another motion dated 6th June, 2011 praying the trial Court as follows: –

?1. AN

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ORDER of Court setting aside or striking out this suit i.e. Suit No. HOW/133/2011 Chief Nnamdi Offiah & 2 Ors V Barr. Peter Offiah & Anor for the following reasons.
(i) The writ of summons which is for service outside Imo State and within Imo State was not marked CONCURRENT as required by the Sheriffs and Civil Process Act.
(ii) The honourable Court has no jurisdiction to entertain this suit for the reason that two of the buildings, the subject matter of this suit, are situate in Rivers State i.e. at No. 117 Old Aba Road, Rumubiakani Port Harcourt Rivers State and No. 16 Old Aba Road, Rumuomasi Port Harcourt, Rivers State.?

These two motions were taken together by the trial Court and determined in its ruling of 25-4-2012 wherein the trial Court found no merit in the two applications and dismissed them. Dissatisfied with this ruling, the Appellant filed this appeal.
The Appellant raised three issues for determination to wit: –
1. Whether the writ of summons is not defective.
2. Whether the 1st to 3rd Respondents motion on notice for interlocutory injunction is not incompetent.
3. Whether the Honourable Court has

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the jurisdiction to entertain this suit.?

These issues were adopted by the 1st to 3rd Respondents. The trial Court in dealing with issue 1 set out above held that the writ of summons complied with S.97 of the Sheriffs and Civil Process Act. It went on to state that the claimant was not required to comply with S.98 of the said Act. S.98 reads: –
?A writ of summons for service out of the State or the capital territory in which it was issued may be issued as a concurrent writ with the one for service within such State or capital territory and shall in that case be marked as concurrent.?

How and why it came to the conclusion that this provision was not applicable in this case was not stated by the trial Court. What issued at the instance of the complainant was clearly a concurrent writ of summons and ought to have been so marked by the registry of the trial Court. S.98 of the Sheriffs and Civil Process Act makes it mandatory that a concurrent writ of summons shall be marked ?concurrent.? In the instant case there was a clear breach of that section and the breach invalidated the writ that issued.

?On issue 2, it is

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an accepted fact that the Appellant resides in Lagos. The offending suit was taken out of the High Court of Imo State. On 23-5-11 the plaintiffs who are 1st and 3rd Respondents filed a motion on notice at the trial Court seeking an interlocutory injunction restraining the Appellant from collecting rent and continuing to manage properties in the estate of Late Chief Greg I. Offiah pending the determination of the substantive suit. The motion paper set the date for hearing the motion as 9th June 2011. The Appellant on 6th June 2011 timeously filed a motion challenging the competence of the motion for injunction. S.95 of the Sheriffs and Civil Process Act requires 30 days between service and hearing of the motion on notice. As rightly stated by the trial Court and relying on the decision of the Supreme Court in Skenconsult (Nig) Ltd vs Secondy Ukey (1981) 1 SC.6, this non compliance with S.95 of the Sheriffs and Civil Process Act was a fundamental defect that went to the jurisdiction and competence of the trial Court. The Court however went on to rely on Universal Trust Bank Ltd vs. Dolmetsch Pharmacy (Nig) Ltd (2007) All FWLR (Pt 385) 434 to hold that as the

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motion in question sought to protect that Res from dissipation, it was competent for the Court to hear the motion. This is a complete misapprehension of the judgment of the Supreme Court in the case of Universal Trust Bank v. Dolmetsch supra. The major difference was that in that case the motion was ex-parte. It was not a motion on notice and so the provisions of S.95 of the Sheriff?s and Civil Process Act was not applicable. The time element was not there. The claimants ought to have complied with S.95 of the Act and come by way of an ex-parte application for an interim order to protect the res. The trial Court was wrong in holding that the motion on notice was competent.

Issue 3 deals with the jurisdiction of the Court to entertain the suit when the properties involved are in both Imo and Rivers States. In Balogun vs. Agbara Estate Ltd (2007) L.P.EL.R 8784 Adamu-Augi JCA (as she then was) set out the position of the law thus:
?it is well settled that the High Court of a State has jurisdiction to entertain an action arising from the administration of the estate of a deceased person who died intestate notwithstanding that the letters

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of Administration is in respect of the properties within the State while the estate includes properties outside the State.? See also Solubi vs Nwariaku (2003) 7 NWLR (pt819) 426, Amobi vs Nzegwu (2005) 12 NWLR (pt. 938) 120 and Okonyia vs Ikenga v Ors (2001) FWLR (pt53) 158. I need not say more.

This appeal succeeds in part. The writ of summons in Suit No. HOW133/2011 and the motion on notice for interlocutory injunction filed in the said suit on 23-5-2011 are hereby declared incompetent and the suit struck out.

Other Citations: (2016)LCN/8983(CA)